Jonathon Silversky v. Michael Fletcher

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JONATHON SILVERSKY,
Applicant,
v.
MICHAEL FLETCHER,
Respondent.
No. 18-70281
ORDER*
Application to File Second or Successive
Petition Under 28 U.S.C. § 2254
Argued and Submitted May 14, 2019
Seattle, Washington
Before: HAWKINS, W. FLETCHER, and BENNETT, Circuit Judges.
Montana state prisoner Jonathon Silversky’s (“Silversky”) application for
authorization to file a second or successive 28 U.S.C. § 2254 habeas corpus petition
is denied. Silversky has not made a prima facie showing under 28 U.S.C.
§ 2244(b)(2) that:
(A) the claim relies on a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable; or
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
MAY 24 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 18-70281
(B)(i) the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence; and (ii) the
facts underlying the claim, if proven and viewed in light of the evidence
as a whole, would be sufficient to establish by clear and convincing
evidence that, but for constitutional error, no reasonable factfinder
would have found the applicant guilty of the underlying offense.
Regarding § 2244(b)(2)(A), any rule announced in Williams v. Pennsylvania,
136 S. Ct. 1899 (2016), “regulate[s] only the manner of determining the defendant’s
culpability” and thus is not substantive. Montgomery v. Louisiana, 136 S. Ct. 718,
732 (2016) (alteration in original) (quoting Schriro v. Summerlin, 542 U.S. 348, 353
(2004)). The Supreme Court has not otherwise made Williams retroactive to cases
on collateral review. See Tyler v. Cain, 533 U.S. 656, 665–67 (2001).
Regarding § 2244(b)(2)(B), Silversky has not identified, let alone articulated
why the newly discovered facts on which his claims rely “could not have been
discovered previously through the exercise of due diligence.” 28 U.S.C.
§ 2244(b)(2)(B). Further, none of his claims, if proven, would show he is “actually
innocent” of the crime to which he pleaded guilty. See King v. Trujillo, 638 F.3d
726 (9th Cir. 2011).
Silversky’s motion for a ruling on the merits (Dkt. 19) is denied as moot.
No further filings will be entertained in this case.
DENIED.

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